HUSBAND AND WIFE FIGHTS OVER THE EXCLUSIVE OCCUPANCY OF THEIR FORMER MATRIMONIAL HOME WITH THE CHILDREN
Yenger & Wilbert [2020] FCCA 3486 (23 December 2020)
This is an interim parenting proceeding where each party seeks exclusive occupancy of the former matrimonial home.
Facts:
The parties to the proceedings are the parents of the three children of the relationship, Z, X and Y. The applicant is the children’s mother and the respondent is the father. The parents purchased the former matrimonial home situated at B Street, Suburb C in joint names in 2003.
The parents separated in 2018 and have remained living separated in the former matrimonial home since then. The applicant and the children have occupied the main house while the respondent has been living in a detached one-bedroom self-contained unit at the rear of the main house (“the cabana”).
The mother proposes that X and Y to live with her in the former matrimonial home and spend time with the father from after school Friday until before school Monday on each alternate weeks, half the school holidays and on special occasions. The father, on the other hand, proposes for X and Y to live with him in the former matrimonial home and spend time with the mother from 10am on Sunday to the commencement of school on Monday.
Z, the eldest child, was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), Depression, Anxiety and commenced treatment. The parties agreed that Z should live with and spend time with each of her parents in accordance with her wishes.
The mother says that the father’s continued presence in the home poses and unacceptable risk of psychological harm to the children, such that would warrant a restraint preventing him from residing in the former matrimonial home.
The father submits that he does not have the financial capacity to continue paying the mortgage over the former matrimonial home and to pay for alternate residence for himself. He says that he should be granted exclusive occupancy of the former matrimonial home and that the children should continue to live with him there.
Issue: Who shall have exclusive occupancy of the former matrimonial home?
Law:
- Section 68B of the Act provides that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including, relevantly, an injunction restraining a person from entering or remaining in a place of residence of the child.
Analysis:
Continued exposure of the children to the parental conflict is likely to place the children at an unacceptable risk of psychological harm. Whoever the children live with, they should, in the interim at least, remain living in the former matrimonial home, as it will provide the children with stability and ensure that there is least disruption possible for them as the parents continue to be involved in this litigation.
It appears that, prima facie, it is the mother who has been the children’s primary carer throughout their lives, notwithstanding the parties’ busy careers and the assistance of nannies and the mother’s parents in looking after the children from time to time.
It is therefore in the children’s best interest that, in the interim period, they remain living with the mother in the former matrimonial home and that the mother is granted exclusive occupancy of the home to that end.
Conclusion: The Court orders that the children live with their mother in the matrimonial home.